Termination of Parental Rights Case Dismissed for Lack of Standing in Fayetteville, TN: In re Ava B.

Facts: Mother and Father adopted Child.

Three years later, Mother and Father divorced. Father was designated the primary residential parent for Child while Mother received 80 days of parenting time.

Much post-divorce litigation ensued.

Seven months after the divorce, Father petitioned to terminate Mother’s parental rights on the grounds that Mother willfully failed to pay child support and failed to exercise her parenting time.

knoxville divorce lawyersMother moved to dismiss Father’s petition for lack of standing and, therefore, subject matter jurisdiction.

Father then amended his petition to add his mother — Child’s paternal grandmother — as a party.

Mother again sought dismissal because Grandmother lacked standing, too.

The trial court denied Mother’s motion to dismiss.

Mother requested an interlocutory appeal, which request was granted.

On Appeal: The Court of Appeals reversed the trial court.

Standing is a judicially created doctrine that asks whether a party advancing a claim is properly situated to prosecute the action. Courts should refuse to entertain an action at the instance of one whose rights have not been invaded or infringed.

Standing to petition to terminate parental rights is statutorily restricted. In pertinent part, Tennessee Code Annotated § 36-1-113(b)(1) provides:

The prospective adoptive parent or parents, including extended family members caring for a related child, any licensed child-placing agency having custody of the child, the child’s guardian ad litem, or the department [of children’s services] shall have standing to file a petition . . . to terminate parental or guardianship rights of a person alleged to be a parent or guardian of the child. The child’s parent, pursuant to subdivision (g)(11), shall also have standing to file a petition . . . to terminate parental or guardianship rights of a person alleged to be a parent or guardian of the child.

Tennessee Code Annotated § 36-1-113(g)(11) provides only a single circumstance when a parent can petition to terminate the parental rights of another parent, where the respondent “parent has been found to have committed severe child sexual abuse under any prior order of a criminal court.”

After reviewing the record, the Court explained:

Here, Father made no claim that Mother had been convicted of an offense involving severe child sexual abuse, and therefore, Father had no standing to petition to terminate Mother’s parental rights.

Grandmother also lacked standing to petition to terminate Mother’s parental rights. Father argues that standing is conferred on Grandmother as she is an “extended family member.” However, this argument takes the language of the statute out of context. The extended family member must be “caring for a related child.” Grandmother is not. However, even if she were, she would still lack standing.

To petition to terminate parental rights, the extended family member caring for a related child must be a “prospective adoptive parent.” Grandmother cannot be a “prospective adoptive parent.” To adopt, one must have more than intent or desire. Specifically, to adopt Ava, Grandmother would have to terminate the parental rights of her son, as well as those of Mother…. The allegations of the Petition make clear that she does not intend to terminate Father’s parental rights, and it is equally clear that Father does not intend to surrender his parental rights.

Accordingly, the trial court’s ruling was reversed. Father and Grandmother’s petition to terminate Mother’s parental rights was dismissed.

K.O.’s Comment: Father had no chance here. Parental rights can only be terminated as part of an adoption. A stepparent adoption is the only circumstance that permits one of the biological parent’s rights to remain intact. In all other cases, both biological parents’ rights must be terminated prior to the child’s adoption.

In re Ava B. (Tennessee Court of Appeals, Middle Section, April 27, 2016).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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